Columbia Gas Company sued the Borough of State College and Borough Manager Tom Fountaine on May 13, 2013, the same week the Borough Council held at least two executive sessions (Monday, May 13 and Thursday, May 16) to discuss “potential litigation.”
Key Columbia Gas claims:
- The proposed pipeline is a distribution line, and “routing distribution lines through residential neighborhoods is not prohibited by any applicable federal, state or local law, rule or regulation.”
- “Safety regulation of the construction, operation and maintenance of underground gas pipeline is preempted by federal and state law, and the Borough lacks authority to base its denial on safety issues.”
- “The university is a member of the public.”
- “The Borough’s right to protect public safety and welfare is preempted in this context.”
- 15 Pa.C.S. Section 1511 (e), regarding permits, is “not intended to imply a power to decide whether or not, and by whom, a type of utility service may be offered by means of the contemplated facilities.”
- “General Borough or resident opposition to the project is not a cognizable basis on which to deny the Permit Application.”
- “The fact…that Columbia’s proposed distribution line will convey gas from one point on University property to another point on University property is neither legally nor factually relevant to Columbia’s exercise of…its right of eminent domain…”
- “…Local autonomy under home rule is a limited independence.”
- “Well settled Pennsylvania law forbids local government units and political subdivisions…from relying on local ordincances when attempting to interfere with the exercise of eminent domain by public utilities.”
Columbia Gas asks the Court to:
- Vacate the Borough’s denial Columbia Gas’ Prospect Avenue pipeline permit application, and/or order the Borough to approve the permit; and/or
- Declare that Ordinance 2005 and the Community Bill of Rights charter amendment are “preempted by 15 Pa.C.S. Section 1511 insofar as the Borough seeks to regulate whether, where and under what terms Columbia may condemn a right of way for an underground gas pipeline.”
See also: March 15, 2013 – AJ Sulkowski Email to Amy Kerner: “…since this will most likely be considered a transmission class pipe line the PUC could request Columbia to di[g] up a section to verify the wall thickness with in a few years…”
Borough released a public statement on the litigation:
Many residents are quite angry that the Borough Council and Borough Manager gagged themselves, keeping the lawsuit secret from the community since its filing on May 13, and are planning to attend tonight’s Council work session to discuss the current situation.
Message from Smita Bharti:
We learned last week from Theresa Lafer (thanks Theresa!) that Columbia Gas filed a lawsuit against the Borough on May 13. The lawsuit deals with utility rights, and not specifically with the pipeline.
However, the lawyers we have spoken with so far feel that in case Columbia Gas wins this lawsuit, there is a good possibility that they will put the gas pipeline along the original route. This case could very well be a showcase for Columbia Gas to show other municipalities the state and federal preemption over local authority, so as to deter future resistance.
We raised our concerns on April 1 in a landmark Borough Council meeting. This is the moment we have to back these concerns with legal action. The Borough needs our help, and we will be intervening in the lawsuit in order to make sure that we raise the points that are missed by the Borough. Please pass along any recommendations for lawyers to me.
The bottom line is that we are directly affected and have to make sure our voice and concerns are adequately heard. There are several issues that we need to stay on top of. For example, “transmission” vs. “distribution” [pipeline classifications] and other deceptions/coverups.
The fact that Columbia gas had filed a lawsuit almost a month ago should have been made known to us directly and not through the grapevine. I had specifically asked the Borough officials after the April 1 meeting to let me know of any lawsuit from Columbia Gas so that we could intervene in a timely manner.
Their not doing so has put us in a time crunch situation which could have easily been avoided. This again points to lack of transparency and effective communication from the Borough. We plan to point this out in the Borough Council work session tonight. Hope to see you there at the public comments section.
Message from Braden Crooks (Groundswell founder):
Hello from New York, where a freak tropical storm has once again descended over the city.I continue to be in awe and in envy of this group, which has organized so quickly and effectively against this threat to State College’s Energy Sovereignty (an excellent explanation of the way we really should be dealing with our energy). I’m also compelled to send this note in solidarity, because State College is so close to my heart and I really can’t help myself but share my outrage!
I think it’s especially important in these moments not to be drawn into a fight over details included in the lawsuit, but to keep the discourse about what we think is important: the Bill of Rights, and the goal of local energy sovereignty. Is everything we’re doing a step in that direction: opening up the process to local self-determination, and creating a more transparent and equitable situation?
It’s also important to remember that Rodney Erickson and Penn State could put an end to any suit if they wanted, and he is ultimately responsible for this pipeline: so we should keep the pressure where the buck stops on this whole project. The culture of the University desperately needs to change, and their partner in the project suing the borough is a disaster for town and gown relations, deepening the crisis of leadership at our school.
That’s the long game of a sustainable local future and an open, cooperative Penn State, in my mind anyway, which is nothing controversial or unreasonable to create.
Message from Ocean City, New Jersey:
A friend of mine from State College told me about the great fight being waged to stop the gas pipeline by your group. I live in Ocean City, NJ and have been involved with trying to close BL England. It has been a coal burning energy plant since 1960’s resulting in terrible health problems to my community.
Recently they have been forced to discontinue coal and have plans to pipe in natural gas originating from the Marcellus Shales. This pipeline is being planned to go through pristine Pinelands. My concern that when the inevitable pipe blowout occurs what the effects on our Pinelands and our water source (aquifer) will be.
I also have great concerns for the people in Pennsylvania affected by fracking. An action to stop the gluttonous gas appetite of our power plant would benefit those people at its source.
Public hearings are scheduled for 6/28/2013. I am hoping that your greater experiences in this fight could help us and even more important if any of your activists might be available to join us at the hearing.
Thanks for your inspiring work.
Passed along to Jon Eich at the June 4 Highlands Civic Association/Planning Commission Joint Meeting:
Passed along by Jon Eich at the June 4 Highlands Civic Association/Planning Commission Joint Meeting:
- Concerned residents should take a look at recent minutes related to COG’s regional master plan, because nuclear power is included in the current draft under “sustainability.” I haven’t located the relevant section yet; Eich said the public comment period is coming up soon for the regional master plan.
- Minutes of Jan. 9, 2013 COG Public Services and Environmental Committee meeting: “Review of Comprehensive Plan Update:…Mr. Remick recommended that the CRPA seek help to improve the language regarding energy. He also stated that Pennsylvania can’t meet its energy demands with wind and solar only; fossil fuels are needed and nuclear energy should be referred to in the Comprehensive Plan.”
June 14 & 15 – Democracy School in State College
For more information about how and why we currently lack state and federal legal authority to protect our own health, safety and welfare, sign up for the June 14 – 15 State College area Democracy School. The workshop will cover the local State College Community Bill of Rights, the historical forces that drove the 2011 campaign, and how the bill of rights can be used to build a sustainable energy future for the Borough. Scholarships are available. To sign up contact Joe Cusumano.
RIGHT TO KNOW
Pennsylvania Public Utilities Commission
Last week, I received a copy of Columbia Gas’ February 26, 2013 notice to the PUC, via Right to Know request.
The Columbia Gas filing doesn’t specify “distribution v. transmission” but does refer to “Location Class: 4” See, for reference: Pipeline Integrity Basics – Kiefner.
Pennsylvania Department of Environmental Protection
Following up on the information from the May 16 Planning Commission meeting – that the West Campus Steam Plant conversion has been submitted to the PA Department of Environmental Protection, I have an appointment to review DEP records on June 24 in Williamsport. DEP has received application for West Campus Steam Plant – Penn State University #14-00003 – and it’s under review under air quality standards, but no decision had been made as of June 3, when I spoke to Judith Ruhl at the Williamsport office.
Pennsylvania Department of Labor & Industry
I have not yet put in a request for the conversion plan application files available at the Pennsylvania Department of Labor & Industry, which had apparently been approved as of the May 16 Planning Commission meeting.
No new imformation available, as far as I know.
SUSTAINABLE ENERGY POLICY DEVELOPMENT
Correspondence with Borough Manager Tom Fountaine regarding local legislative process and timeframes.